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Author

Bauer, Jon

Abstract

The conventional wisdom among practitioners and legal ethics
scholars has been that lawyers may ethically negotiate any settlement
terms that serve their clients’ interests and are not criminal or
fraudulent. (Some recent critics of settlement secrecy have argued
that noncooperation settlements violate obstruction of justice statutes
or other criminal laws, but the illegality argument is largely
unconvincing.) This Article argues that the conventional view has
looked at the problem through the wrong lens. In the ethos of the
ethics codes, third party and societal interests generally take a backseat to client service, but certain types of conduct deemed especially
harmful to the justice system have long been placed off-limits to
lawyers because of their special role as “officers of the court.”
This Article traces the history of one such duty, the principle that
lawyers must not ask nonclients to refrain from voluntarily disclosing
relevant information to other parties or their attorneys, and shows the
important function that it plays in safeguarding the integrity of
adversary adjudication. After providing a theoretical justification for
liberally construing ethics rules that limit client advocacy for the sake
of the adversary system’s effective functioning, this Article explores
what the rules mean for settlement practices. The Conclusion
addresses the critique that prohibiting lawyers from negotiating
agreements that their clients could lawfully enter into on their own is
either futile or paternalistic, and shows that it is neither.

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